Brick Lane Brewing Co Pty Ltd v Torquay Beverage Co Pty Ltd  FCA 66
Napoleon has been quoted to have said: “On victory, you deserve beer, in defeat, you need it.”
In a recent court battle between two competing breweries heard before the Federal Court of Australia, it seems that both parties could be in search of a stiff drink.
In 2021, Brick Lane Brewing launched court proceedings against the Torquay Beverage Co, a beer brand partly owned by comedy influencers, Jack Steele and Matt Ford, the duo behind The Inspired Unemployed, over the design and get up of its carb-free “Better Beer” brand.
Brick Lane Brewing claimed the design of the “Better Beer” can was too similar to that of its own Sidewinder hazy pale ale. They alleged that it had engaged in misleading and deceptive conduct and making misleading or false representations.
Brick Lane Brewing argued that:
- the promotion, sale and packaging of the Better Beer products was substantially similar to that of Sidewinder’s, and this was capable of causing consumers to mistake the brands for one another;
- the similarities could cause consumers to believe that Better Beer was either associated with Brick Lane Brewing, or endorsed, approved, licensed and/or sponsored by Brick Lane Brewing; and
- Better Beer’s significantly similar ‘get-up’ to Sidewinder would cause this confusion, as the packaging for both products include blue, orange and yellow stripes, off-white 355ml cans, and dark text labelling.
Images of the two competing products are shown below:
In response, Torquay Beverage Co argued that consumers would not be confused by the two products, as they are distinct enough from each other, and especially since the two products were marketed to different segments of the market. The Sidewinder product is a zero or low alcohol beer, whereas Better Beer is a full-alcohol but low carbohydrate beer.
Despite the packaging used for each product having many similar features, Justice Angus Stewart dismissed Brick Lane Brewing’s claims noting that the distinctive names used for the different products as well as the differences between the “get-ups” and features meant consumers wouldn’t confuse the products. In reaching this decision, the Court considered:
- the strength of both Torquay Beverage Company and Brick Lane Brewing’s reputations;
- the nature and extent of the differences between Better Beer and Sidewinder;
- the circumstances in which both beers were offered to the public; and
- whether Better Beer’s creators copied or intentionally adopted prominent features of Sidewinder.
For business owners this case serves up a timely reminder that in addition to brand names, the distinctive features of a product or service, such as colour, patterns or shapes, can be the subject of a trade mark application and be used to prevent your competitors from using similar features. Had Brick Lane Brewing taken steps to register as a trade mark, the colours, stripes, and other features of its Sidewinder product it could have pursued Torquay Beverage Co for trade mark infringement, rather than attempting to establish a strong reputation in its product and be afforded protection under the Australian Consumer Law, which has a much higher threshold.
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